DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JUDITH LONG,

Appellant,

v.

JAMES L. KROPKE and ROSE E. KROPKE,

Appellees.

No. 4D22-3310

[August 16, 2023]

Appeal of a nonfinal order from the Circuit Court for the Nineteenth 

Judicial Circuit, Martin County; Gary Sweet, Judge; L.T. Case No. 

432022CA000540.

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, and Lara J. 

Edelstein of Boyd & Jenerette, P.A., Jacksonville, for appellant.

William R. Ponsoldt, Jr., of Wright, Ponsoldt & Lozeau Trial Attorneys, 

L.L.P., Stuart, for appellees.

PER CURIAM.

Judith Long, the defendant in a negligence action arising from a car 

accident, appeals an order granting plaintiffs James and Rose Kropke’s 

motion to amend the complaint to plead a claim for punitive damages. We 

reverse because the Kropkes failed to establish a reasonable evidentiary 

basis to find that Long’s conduct amounted to gross negligence under 

section 768.72(2)(b), Florida Statutes (2021).

Background

The car accident occurred in the morning on a residential street inside 

a gated country club community. A resident had stopped his golf cart on 

the right side of the street, about four to five feet past an intersection. He 

was talking to the Kropkes, who were standing on the street between his 

golf cart and the curb. Long drove her car around a corner and onto the 

street where the resident’s golf cart was stopped. Her car collided with the 

back of the golf cart and hit Rose Kropke at about the same time. The 
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collision pushed the golf cart forward about six to eight feet and caused it 

to hit James Kropke.

The Kropkes sued Long for negligence and loss of consortium, alleging 

that the accident caused Rose Kropke to suffer severe permanent injuries. 

They later moved to amend the complaint to add a claim for punitive 

damages based on gross negligence.

In their proposed amended complaint, the Kropkes alleged that Long 

had a habit of speeding through the community, was speeding at the time 

of the accident, and ran a stop sign at the corner before turning onto the 

street where they were standing. In support of those allegations, they 

submitted an evidentiary proffer consisting of: (1) Rose Kropke’s answers 

to interrogatories, in which she stated that Long was speeding at the time 

of the accident and had run the stop sign and identified two witnesses who 

would testify to Long’s habit of speeding in the community; (2) an affidavit 

by the resident with the golf cart, in which he stated it was “obvious” to 

him that Long must have accelerated through the intersection in excess of 

the speed limit and could not have stopped at the stop sign; and (3) a 

proffer of testimony from the resident with the golf cart and the Kropkes 

that Long sped through the intersection and did not stop at the stop sign.1

The court granted the motion to amend, and Long timely appealed.

Analysis

We review an order on a motion to amend a complaint to plead a claim 

for punitive damages de novo. Marder v. Mueller, 358 So. 3d 1242, 1245 

(Fla. 4th DCA 2023).

Punitive damages may only be awarded where the conduct of the 

defendant amounts to gross negligence or intentional misconduct. § 

768.72(2), Fla. Stat. (2021). Before a plaintiff may plead a claim for 

punitive damages, the plaintiff must make a “reasonable showing by 

evidence in the record or proffered by the claimant which would provide a 

reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat.

(2021).

1 We have not considered any of the Kropkes’ proffered evidence that did not 

relate to a specific allegation in their proposed amended complaint. See HRB Tax 

Grp., Inc. v. Fla. Investigation Bureau, Inc., 360 So. 3d 1159, 1162 (Fla. 4th DCA 

2023); Varnedore v. Copeland, 210 So. 3d 741, 745 (Fla. 5th DCA 2017).
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In this case, the Kropkes’ claimed basis for recovery of punitive 

damages is gross negligence. Gross negligence requires proof that “the 

defendant’s conduct was so reckless or wanting in care that it constituted 

a conscious disregard or indifference to the life, safety, or rights of persons 

exposed to such conduct.” § 768.72(2)(b), Fla. Stat. (2021). The level of 

negligence required is equivalent to that required to support a conviction 

for criminal manslaughter. Valladares v. Bank of Am. Corp., 197 So. 3d 1, 

11 (Fla. 2016); see also Marder, 358 So. 3d at 1245 (recognizing that 

punitive damages are “reserved for truly culpable behavior and are 

intended to ‘express society’s collective outrage’”) (quoting KIS Grp., LLC v. 

Moquin, 263 So. 3d 63, 65–66 (Fla. 4th DCA 2019)).

The Kropkes argue that they established a reasonable basis to find that 

Long’s conduct amounted to gross negligence under section 768.72(2)(b) 

because their proffered evidence showed that Long “consciously 

disregarded” the safety of everyone in the community by habitually 

speeding, speeding at the time of the accident, and running the stop sign 

at the intersection. They rely on three cases in which the evidence was 

found to be sufficient to support a claim for punitive damages and argue

that the evidence in this case is similar to the evidence in those cases. We 

disagree and conclude that none of the cases upon which the Kropkes rely

are sufficiently similar to support the required reasonable evidentiary 

showing of gross negligence.

First, the Kropkes rely on L.E. Myers Co. v. Young, 165 So. 3d 1 (Fla. 

2d DCA 2015). In that case, a driver was driving ninety-one miles per hour 

in a forty-mile-per-hour zone near a construction site and was weaving in 

and out of oncoming traffic before he rear-ended a stopped car without 

braking. Id. at 3. The Second District suggested that the evidence might 

have supported a claim for punitive damages against the driver, id. at 7-

8, but he had either settled or been dismissed from the suit by the time 

the appeal was filed, id. at 3 n.1.

Second, the Kropkes rely on Hardiman v. Stevens, No. 8:09-cv-2110-T33AEP, 2011 WL 1480401 (M.D. Fla. Apr. 19, 2011). In that case, a driver 

was driving fifty to fifty-five miles per hour on a wet road while approaching 

stopped traffic. Id. at *1, *3. The driver turned sharply at the last minute 

to avoid a collision, but his van hit a curb, became airborne, and struck a 

school bus with enough force to separate the bus from its suspension 

system. Id. The federal district court, applying Florida law, denied the 

driver’s motion for partial summary judgment and ruled that sufficient 

issues of fact existed to allow the jury to consider awarding punitive 

damages against him. Id. at *3–4.
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Third, the Kropkes rely on Williams v. Florida East Coast Railway Co., 

552 So. 2d 279 (Fla. 3d DCA 1989). In that case, a train engineer was 

speeding in an area where pedestrians frequently crossed the train tracks 

and failed to brake before hitting the plaintiff, who was unconscious and 

lying partially on the tracks. Id. at 279-80. The engineer admitted that 

he saw something on the tracks but testified that he had a personal policy 

not to stop or slow down for obstacles unless the train was in danger of 

derailing. Id. at 280. The plaintiff proffered evidence that the engineer 

had been involved in twenty prior accidents, many of which had caused 

serious injuries or fatalities. Id. at 280 n.1. The Third District held that 

the evidence was sufficient to support the plaintiff’s claim for punitive 

damages against the engineer. Id. at 281.

The Kropkes did not proffer sufficient evidence in this case to show that 

Long’s conduct was as egregious as that of the defendants in Young, 

Hardiman, or Williams. Most notably, the Kropkes did not proffer any 

specific evidence as to how fast Long was driving at the time of the 

accident; their proffered testimony was only that she was “speeding.” Nor 

did they proffer any evidence that the road conditions were especially 

dangerous, that any vehicles were on the road other than the resident’s

golf cart, or that Long saw or could have seen the golf cart before she 

turned the corner. Cf. Young, 165 So. 3d at 3 (evidence showed that the 

driver was driving more than fifty miles per hour over the speed limit near 

a construction site, was weaving in and out of oncoming traffic, and did 

not brake before hitting a stopped car); Hardiman, 2011 WL 1480401, at 

*1, *3 (evidence showed that the driver was driving fifty to fifty-five miles 

per hour on a wet road while approaching stopped traffic);2 Williams, 552 

So. 2d at 279–80 (evidence showed that the train engineer was speeding 

in an area where pedestrians frequently crossed the tracks and chose not 

to stop or slow down despite seeing something on the tracks).

The Kropkes appear to rely on Williams to support their argument that 

Long’s alleged habit of speeding in the community demonstrated a 

conscious disregard for the safety of others. But the plaintiff in Williams

proffered specific evidence regarding twenty serious accidents in which the 

same engineer who hit the plaintiff had previously been involved, 552 So. 

2d at 280 n.1, and that engineer testified he had a personal policy not to 

stop or slow down for obstacles on the tracks unless the train was in 

2 To the extent the Kropkes rely on Hardiman to support an inference that Long 

must have been speeding based on the impact to the resident’s golf cart, we note 

that the force required to push a golf cart forward six to eight feet is much less 

than that required to separate a bus from its suspension system. See Hardiman, 

2011 WL 1480401, at *1, *3.
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danger of derailing, id. at 280. Here, the Kropkes did not proffer any 

specific evidence regarding Long’s prior instances of speeding. They 

identified two witnesses who would testify to Long’s “habit” of speeding, 

but they did not proffer any actual testimony from those witnesses as to 

the frequency or degree of Long’s speeding. Nor did they proffer any 

evidence that Long had expressed a “conscious disregard” or “indifference” 

to the safety of the community, as required by section 768.72(2)(b). Cf.

Williams, 552 So. 2d at 281 (noting the engineer’s “accident history and 

statements evidencing his higher concern for the locomotive than for the 

safety of pedestrians”).

In addition to the three cases discussed above, the Kropkes also cite 

Lester v. State, 737 So. 2d 1149 (Fla. 2d DCA 1999). In that case, the 

Second District held that the evidence was sufficient to sustain a 

conviction for vehicular homicide where the defendant ran a red light and 

three stop signs in an attempt to evade the police before striking the 

victim’s car at an estimated sixty miles per hour, causing the victim’s car 

to flip over and hit a tree. Id. at 1150–52. Even if we agreed that the facts 

in Lester were similar to the facts in this case, the Kropkes’ reliance on 

Lester is misplaced because the standard of proof required to sustain a 

conviction for vehicular homicide is less than the standard of proof 

required to sustain a conviction for manslaughter by culpable negligence. 

See McCreary v. State, 371 So. 2d 1024, 1025–27 (Fla. 1979); Valladares, 

197 So. 3d at 11 (recognizing that the level of negligence required to 

support an award of punitive damages is the same as that required to 

sustain a conviction for manslaughter).

In summary, we conclude that the Kropkes’ proffer was insufficient to 

establish a reasonable evidentiary basis for recovery of punitive damages 

based on gross negligence under section 768.72(2)(b). The Kropkes’ proffer 

demonstrated that Long’s conduct as alleged in their complaint amounted 

to ordinary negligence, not the type of “truly culpable” or “outrage[ous]” 

conduct that would support a claim for punitive damages. See Marder, 

358 So. 3d at 1245. Accordingly, we reverse the order granting the 

Kropkes’ motion to amend the complaint to plead a claim for punitive 

damages and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WARNER, GERBER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.